Crisis of Legitimacy

Should-have-been Supreme Court Justice Merrick Garland

The news out of the Supreme Court is almost too dark and depressing to contemplate.  When Justice Kennedy’s replacement is seated, a newly entrenched right-wing majority will almost certainly roll-back reproductive freedoms, place at-risk hard-won civil rights and LGBTQ gains, and accelerate trends toward income inequality and the concentration of power among the privileged.  The ugly consequences will play out across a generation.  For those of us with a progressive viewpoint, this is a painful, despairing prospect, and what’s even more infuriating is the feeling that none of it is legitimate.

I mean legitimate in the political science sense of the word — the rooting of public policy and government action in commonly agreed-upon norms and procedures.  Legitimacy is what makes it possible for us to disagree with decisions, but still accept them, recognizing that they flow from a fair process.  It’s why we acknowledge the authority of presidents, governors, and mayors, even those whom we might personally have voted against.  And it is absolutely essential to the stability of any democratic society.

The legitimacy of the soon-to-come Supreme Court majority is very much in doubt.  As others have pointed out, Democrats have won the national vote in six of the last seven Presidential elections.  Neil Gorsuch sits on the Supreme Court only because Senate Republicans engaged in historically unprecedented stalling tactics.  Indeed, a compelling case can be made that Justices Roberts and Alito owe their seats to the Palm Beach County butterfly ballot.

You can argue the details, but this much is undeniable: the Supreme Court is on the cusp of fundamentally changing American life in a way that profoundly conflicts with the demonstrated will of the American people.  In a democracy, that is no minor problem.  It is a crisis.

Rough sledding ahead.  Very rough.